Hollowell v. State, No. 49A02-0111-CR-769.

Docket NºNo. 49A02-0111-CR-769.
Citation773 N.E.2d 326
Case DateAugust 16, 2002
CourtCourt of Appeals of Indiana

773 N.E.2d 326

Anthony HOLLOWELL, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff

No. 49A02-0111-CR-769.

Court of Appeals of Indiana.

August 16, 2002.


773 N.E.2d 327
Aaron E. Haith, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Following a jury trial, Anthony Hollowell was convicted of Escape, as a Class C felony, and Resisting Law Enforcement, as a Class A misdemeanor. The trial court sentenced Hollowell to concurrent executed terms of six years and one year, respectively. Hollowell appeals his convictions and raises the following restated issues for our review:

1. Whether the State presented sufficient evidence to support the Escape conviction.

2. Whether the trial court erred when it denied Hollowell's motion to dismiss.

We affirm.

773 N.E.2d 328
FACTS AND PROCEDURAL HISTORY

In August 1998, Deputies John Breedlove and Garth Schwomeyer of the Marion County Sheriff's Department attempted to execute an arrest warrant for Hollowell at a 38th Street apartment in Indianapolis. Deputy Schwomeyer knocked on the apartment door, and Christopher Hill answered. Hill said that Hollowell was not there, and that he was alone in the apartment. Hill did not reside at the apartment, so the deputies told Hill that he was free to go. As Hill exited, he left the front door ajar, so the deputies reported it to the apartment complex's security officer. Out of concern for her safety, the security officer asked the officers to accompany her as she checked the apartment and secured the door. When the trio entered the apartment, they announced their presence. At that point, Hollowell emerged from a bedroom with his hands in the air. The deputies ordered Hollowell to the ground and placed him in flex cuffs. Deputy Schwomeyer told Hollowell that he was under arrest, helped him off the floor, and escorted him outside to the patrol car. As Deputy Schwomeyer was opening the door, Hollowell pushed the deputy into the car, ran around the back of the car, and headed away from the scene. Deputy Breedlove, who had since departed, learned of Hollowell's escape from the radio dispatcher and returned with a police canine to track Hollowell. But after searching for about an hour, the deputies gave up.

Police later arrested Hollowell, and the State charged him with Battery, as a Class D felony, and Resisting Law Enforcement, as a Class A misdemeanor. But the State had to voluntarily dismiss the charges the day of trial because an essential police witness failed to appear. Based on the same facts and probable cause affidavit, the State refiled and enhanced the charges to include Battery, two counts of Resisting Law Enforcement and Escape, as a Class C felony. Hollowell moved to dismiss the enhanced charges, arguing prosecutorial vindictiveness. But the trial court denied that motion. A jury found Hollowell guilty of Escape and the two counts of Resisting Law Enforcement and not guilty of Battery. The trial court merged one of the Resisting Law Enforcement convictions with the Escape conviction and sentenced Hollowell to concurrent executed terms of six years and one year, respectively. This appeal followed.

DISCUSSION AND DECISION

Sufficiency of the Evidence

Hollowell first contends that the State presented insufficient evidence to support his Escape conviction. We must disagree.

When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor determine the credibility of witnesses. Fish v. State, 710 N.E.2d 183, 184 (Ind.1999). Instead, we look to the evidence most favorable to the State and all of the reasonable inferences to be drawn from that evidence. Bartlett v. State, 711 N.E.2d 497, 499 (Ind.1999). A conviction will be affirmed if the probative evidence and reasonable inferences to be drawn from that evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Fish, 710 N.E.2d at 184.

To convict Hollowell of Escape, the State was required to prove beyond a reasonable doubt that Hollowell intentionally fled from lawful detention. See Ind.Code Section 35-44-3-5(a). Hollowell admits that he intentionally fled from police, but argues that he was not under "lawful detention." Rather, Hollowell argues, as he testified at trial, that he was being taken

773 N.E.2d 329
downtown purely for identification purposes. In this regard, Hollowell asks us to reweigh the evidence and assess the credibility of witnesses, tasks not within our prerogative on appeal

Regardless, there was overwhelming evidence that Hollowell was subject to lawful detention. Deputy Schwomeyer testified that he explained to Hollowell that he was under arrest and the nature of the charges against him and led him out of the apartment in handcuffs. In addition, Deputy Schwomeyer confirmed Hollowell's birthday and social security number before they left the apartment. Also, Hollowell's height, weight, and tattoos matched those listed in the arrest warrant. And both deputies had seen a picture of Hollowell at the pre-warrant meeting and the apartment complex's office before attempting to execute the arrest warrant. Thus, there would have been no need to transport Hollowell to the police station purely for "identification" purposes as Hollowell contends.

Hollowell also attacks the sufficiency of the State's evidence by invoking the incredible dubiosity rule. Under the "incredible dubiosity" rule, a court will impinge upon the jury's responsibility to judge witness credibility only when confronted with inherently improbable testimony or coerced, equivocal, wholly uncorroborated testimony of incredible dubiosity. Id. If a sole witness presents inherently improbable testimony and there is a complete lack of circumstantial evidence, a defendant's conviction may be reversed. Dillard v. State, 755...

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6 practice notes
  • Schiro v. State, No. 10A01-0701-CR-21.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 June 2008
    ...vindictiveness existed where State brought additional charges for same conduct after defendant's successful appeal); Hollowell v. State, 773 N.E.2d 326, 329-30 (Ind.Ct.App.2002) (State did not engage in prosecutorial vindictiveness by dismissing case before start of trial and re-filing with......
  • Tyrie v. State, Court of Appeals Case No. 19A-CR-692
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 March 2020
    ...the trial court did not abuse its discretion when it denied Tyrie's motion to dismiss the charges in Cause 1338. See Hollowell v. State , 773 N.E.2d 326, 331 (Ind. Ct. App. 2002) (affirming denial of Hollowell's motion to dismiss because State's refiling and [143 N.E.3d 996 addition of char......
  • Pond v. State, No. 18A02-0310-CR-913.
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 May 2004
    ...DISCUSSION AND DECISION At trial, Pond bore the burden of proving all facts necessary to his motions to dismiss. Hollowell v. State, 773 N.E.2d 326, 329-30 (Ind.Ct.App.2002). As such, Pond now appeals from a negative judgment. Id. We will reverse a negative judgment only if the evidence is ......
  • Myers v. State, No. 09A02-1105-CR-598
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 April 2012
    ...consequently, Myers "had adequate time to prepare a defense and was not forced to prepare anew on the eve of trial." Hollowell v. State, 773 N.E.2d 326, 331 (Ind. Ct. App. 2002). Furthermore, the Class B felony aggravated battery charge was based on the same facts and circumstances supporti......
  • Request a trial to view additional results
6 cases
  • Schiro v. State, No. 10A01-0701-CR-21.
    • United States
    • Indiana Court of Appeals of Indiana
    • 19 June 2008
    ...vindictiveness existed where State brought additional charges for same conduct after defendant's successful appeal); Hollowell v. State, 773 N.E.2d 326, 329-30 (Ind.Ct.App.2002) (State did not engage in prosecutorial vindictiveness by dismissing case before start of trial and re-filing with......
  • Tyrie v. State, Court of Appeals Case No. 19A-CR-692
    • United States
    • Indiana Court of Appeals of Indiana
    • 12 March 2020
    ...the trial court did not abuse its discretion when it denied Tyrie's motion to dismiss the charges in Cause 1338. See Hollowell v. State , 773 N.E.2d 326, 331 (Ind. Ct. App. 2002) (affirming denial of Hollowell's motion to dismiss because State's refiling and [143 N.E.3d 996 addition of char......
  • Pond v. State, No. 18A02-0310-CR-913.
    • United States
    • Indiana Court of Appeals of Indiana
    • 20 May 2004
    ...DISCUSSION AND DECISION At trial, Pond bore the burden of proving all facts necessary to his motions to dismiss. Hollowell v. State, 773 N.E.2d 326, 329-30 (Ind.Ct.App.2002). As such, Pond now appeals from a negative judgment. Id. We will reverse a negative judgment only if the evidence is ......
  • Myers v. State, No. 09A02-1105-CR-598
    • United States
    • Indiana Court of Appeals of Indiana
    • 18 April 2012
    ...consequently, Myers "had adequate time to prepare a defense and was not forced to prepare anew on the eve of trial." Hollowell v. State, 773 N.E.2d 326, 331 (Ind. Ct. App. 2002). Furthermore, the Class B felony aggravated battery charge was based on the same facts and circumstances supporti......
  • Request a trial to view additional results

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